Choosing the Right Legal Representative for my Employment Dispute.

Finding yourself in a dispute with your employer can be confronting. The terminology, legislation, policies and timelines involved can be complex. Advice from friends and family as to whether you should get a lawyer or not can be confusing. At Mathews Walker we want to demystify the why, when and how of engaging a legal expert and whether an Employment Advocate is right for you.

When is it a good idea to get a legal representative?

You may wish to consider engaging a legal representation in the following situations.

• When the issue is serious, such as dismissal, redundancy, a significant change to your employment terms and conditions, accusations of serious misconduct, or discrimination by your employer. These situations raise legal rights under the Employment Relations Act 2000 and procedural fairness is critical.

• When the employer has legal representation it can a good idea to have someone who understands the law, processes and timelines on your side.

• When the facts and evidence are complex and you need an someone outside of the dispute to clarify things, organise documentation and make sense of the way forward.

• When you want to negotiate a settlement, exit package or deal and you want to be sure you get the best outcome.

  
  

When is it not necessary to have a legal representative?

There are times during employment disputes where a representative may not be necessary.

• When the issue is minor, your employer is acting reasonably and you are able to resolve the issues informally.

• When you are confident with your position, the facts are clear and you are comfortable representing yourself in negotiation or mediation with your employer.

• When the cost of legal assistance may outweigh the likely benefit of the outcome achieved.

• When you already have adequate support from your union or work representative and you trust them to guide you through the dispute.

  
  

What are your options if you decide to get a legal representative?

Employment Lawyer

Often having a deep legal knowledge with the ability to advise on complex, employment lawyers are usually experienced in litigation, procedural rules and evidence.  They can be more expensive than other options and may be more than is necessary for simpler cases giving a more adversarial tone. 

Lawyers often charge by the hour, depending on their expertise and location. They may require a “retainer” or upfront sum to engage their services. It is important to be aware of costs accruing on hourly rate terms as they can mount up quickly in a complex case before an outcome is achieved.

Union

Union representatives are generally experienced in employment matters and can provide support, advice, negotiation and representation in many disputes.  Union membership and advice is only available in some industries/sectors and their availability and coverage can be limited.  Union representatives provide free or low cost advice and support but only to paying members. It is often good to seek additional legal advice in case your union representative is not available or has limited scope i.e. internal processes or collective employment agreements only. In some instances your Union representative may stop short of a resolution when limited by time, resources, capacity or capability to move to mediation or ERA steps.

Employment Advocate

Employment advocates tend to be a more accessible option with more affordable fees and practical employment experience.  While their scope may be limited to employment law, they have a depth of knowledge and experience in their field and are familiar with the procedures and processes involved.

Employment Advocates often offer “no win, no fee” terms, conditional on a financial outcome being achieved for their client.  Their hourly rate fees are generally lower than that of lawyers.  

Self representation

This can be an appealing option given it is the least expensive, giving you the most control over your case and decisions made.  It can be challenging as you must understand and apply rules, evidence and procedure and you may find yourself up against your employer’s legal representative.  You may still wish to seek advice from an expert when taking this approach to ensure you have all the information required to represent yourself.  Even if you self-represent, you may still incur costs such as filing fees, document copying, and expert reports etc.

In what circumstances might I need more than one representative or a change of representative?

Union advocates, lawyers and employment advocates can play similar roles but do offer differences which may impact on the outcome of your dispute. Some things to consider when engaging one or more, or when moving between representatives during your employment dispute.

If you are a member of a Union, your Union representative is a good place to start when addressing concerns with your employer. They generally have a good knowledge of collective agreements or other terms and conditions of employment in your workplace or industry. They often have experience working with your employer and will know what to expect. Their experience can be more focused on collective negotiations rather than individual representations and they are often only able to support you through internal discussions and processes. If this is the case with your Union representative, you may need to engage an external legal representative if your dispute progresses through mediation to the ERA or Employment Court. It can be helpful to start a conversation with a legal expert early in the process to ensure your Union representative's approach is in your best interests and to explore alternative approaches beyond what the Union can offer.

If you have engaged a representative on an hourly rate basis or a retainer, it is easy to see the costs accumulate quickly as your case progresses. If your case is complex, or the process is drawn out through back and forth negotiations with your employer, wait times for mediation or the ERA, your costs may escalate beyond your budget before a resolution is reached. You may then be required to seek alternative, lower cost options or represent yourself in the latter stages when legal expertise can be critical. Where possible, seek representation from the start where the fees are fixed or contingent on you winning your case (no win, no fee). These terms reduce the risk of a cost blow out and allow you to retain your representative through to a resolution.

If you represent yourself, you may reach a point where you need a little extra help or expertise, and if you have engaged a representative, there may come a time where they are no longer the right fit for your case i.e. case has moved beyond your representative's scope or beyond your budget to continue. You may find yourself needing alternative representation and have to engage someone new. This can be done successfully, but can also lead to confusion, delays and weakening of your case.

If you are looking at changing from one representative to another, you need to be aware of any terms of engagement relating to terminating your representative including costs and access to work already completed. You also need to ensure that changing a representative won't comprise your ability to meet time frames and deadlines for dealing with your case.

Wherever possible, it is a good idea to identify a representative from the start who is aligned with what you are wanting to achieve, within your budget (or has terms which minimise the risk of a cost blow out) and have the expertise to see your dispute through to resolution at whichever stage of the process that might be.

Why Choose a Mathews Walker Advocate to Represent You?

At Mathews Walker we can offer legal representation that suits employees and employment disputes of all types. Our Employment Advocates regularly receive 5 star Google Reviews when helping clients resolve their employment issues. Here are some of the reasons why we think we would be a good fit for you.

• Mathews Walker offers a initial free consultation to understand your situation and determine whether you have a case.

• Mathews Walker offers no win, no fee terms for most cases, meaning you don't pay a free unless your advocate is able to secure a financial settlement for you. This reduces up front costs and the risk of your legal fees ballooning.

• Mathews Walker advocates have varied experience and expertise and are able to apply that along with their detailed knowledge of New Zealand employment law to achieve the best outcome for your employment dispute.

• Mathews Walker advocates are focused on achieving the best outcome for you. They will listen first and understand your priorities before seeking the remedies that will benefit you - resolving your case, putting the dispute behind you, and moving forward.

  
  

If you are facing a dispute with your employer and debating whether to engage legal representative to help you through, get in touch with Mathews Walker and talk to our team about what might be right for you. Call for a free consultation today. MathewsWalker.co.nz | 0800 612 355

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Disclaimer: The information provided in this blog is for general informational purposes only and should not be considered legal advice. While we strive to keep the information accurate and up to date, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the blog or the information, products, services, or related graphics contained on the blog for any purpose. Any reliance you place on such information is therefore strictly at your own risk. For specific legal advice tailored to your situation, please contact a qualified legal professional.